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ALLAHABAD HIGH COURT
Rajesh Dayal Khare, J.
Vinod Dubey —Petitioner
versus
State of U.P. and Anr. —Respondents
Application No. 29528 of 2011
Decided on 20.9.2011
Counsel for the Parties:
For the Petitioner:Akash Mishra, Advocate.
For the Respondent:Govt. Advocate.
IMPORTANT POINT
Under Section 482, Cr.P.C., only prima facie case is to be seen.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Summoning—Contention of applicant is that no offence against applicant is disclosed and present prosecution has been Instituted with a mala fide intention for the purposes of harassment—From material on record and facts of case at this stage it cannot be said that no offence is made out against applicant—All submissions made at Bar relate to disputed question of fact which cannot be adjudicated upon by High Court under Section 482 Cr.P.C.—At this stage only prima facie case is to be seen—Prayer for quashing proceedings of complaint case refused—Application disposed of with directions. (Paras 4 to 7)
Result: Application disposed of with directions.
Rajesh Dayal Khare, J.— Heard learned counsel for the applicant and learned AGA for the State/respondent.
2. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of complaint case No.2144 of 2010, under Section 138 of Negotiable Instruments Act, pending before the Chief Judicial Magistrate-III, Agra and also for quashing of the summoning order dated 23.6.2010.
3. Learned counsel for the applicant contends that the cheque in question was lost, which has been misused by the opposite party No.2. It is further contended that the cheque does not bear the signature of? the applicant, therefore, no proceedings under Section 138 of Negotiable Instruments Act could have been drawn against the applicant.
4. The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been Instituted with a mala fide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
5. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases’ of R.P. Kapur v. State of Punjab1; State of Haryana v. Bhajan Lal2; State of Bihar v. P.P. Sharma3 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another.4 The disputed defence of. the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.
6. The prayer for quashing the proceedings of complaint case, is hereby refused.
7. However, it is directed that the applicant shall appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another v. State of U.P.5 as well as judgment passed by Hon’ble Apex Court reported in Lal Kamlendra Pratap Singh v. State of U.P.6 For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
8. With the aforesaid directions, this application is finally disposed of.
Application disposed of with
directions.
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